OFFICES AND OFFICERS ‑- STATE ‑- HIGHWAYS DEPARTMENT ‑- DISPOSITION OF CERTAIN SURPLUS HIGHWAY LAND
(1) In those instances in which the highway lands (including air space) purchased with motor vehicle fund moneys are to be leased or sold to a county or city for nonhighway purposes, the purchaser or lessee, even though it is also a governmental agency, will be required to provide such monetary or other consideration as is necessary, under the particular factual circumstances involved, to avoid an unlawful diversion of motor vehicle funds.
(2) On the other hand, if the lands and/or air space are required to be used by the acquiring county or city for such "highway" purposes as could, constitutionally, be the direct object of motor vehicle fund expenditures themselves, no other consideration will constitutionally be necessary in order to justify the transaction under the provisions of Article II, § 40 (Amendment 18).
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July 17, 1975
Honorable P. J. Gallagher
State Representative, 29th District
125 So. 72nd
Tacoma, Washington 98408 Cite as: AGLO 1975 No. 62
By recent letter you requested our opinion on a question which we paraphrase as follows:
What, if any, monetary or other valuable consideration is necessary in order to permit the state highway department to lease or sell to a county or city land previously acquired by the department for highway purposes with moneys from the state motor vehicle fund?
We answer this question in the manner set forth in our analysis.
We begin our response to your question by noting three pertinent sections of chapter 47.12 RCW which relate, generally, to the disposition of property previously acquired for state highway purposes.
First, RCW 47.12.070 provides that:
"If the Washington state highway commission deems that any land is no longer required for state highway purposes and that it is in the public interest so to do, said highway commission may negotiate for the sale of the land to a city or county of the state. The state highway commission shall certify the agreement for the sale to the governor, with a description of the land and the terms of the sale, and the governor may execute and the secretary of the state shall attest the deed and deliver it to the grantee.
"Any moneys received pursuant to the [[Orig. Op. Page 2]] provisions of this section shall be deposited in the motor vehicle fund."
Next, RCW 47.12.120 states that:
"The highway commission is authorized, subject to the provisions and requirements of zoning ordinances of political subdivisions of government, to rent or lease any lands, improvements, or air space above or below any lands, including those used or to be used for both limited access and conventional highways which are held for highway purposes but are not presently needed, upon such terms and conditions as the highway commission may determine."
And thirdly, RCW 47.12.125, a statute enacted in conjunction with RCW 47.12.120, provides, in essentially the same manner as the concluding paragraph of RCW 47.12.070,supra, that:
"All moneys paid to the state of Washington under any of the provisions of RCW 47.12.120 shall be deposited in the motor vehicle fund."
The motor vehicle fund to which reference is made in these statutes, as provided for by RCW 46.68.070, is a special fund which has been established by the legislature in accordance with the mandate of Article II, § 40 (Amendment 18) of our state constitution. This provision, which was adopted in 1944, requires that:
"All fees collected by the State of Washington as license fees for motor vehicles and all excise taxes collected by the State of Washington on the sale, distribution or use of motor vehicle fuel and all other state revenue intended to be used for highway purposes, shall be paid into the state treasury and placed in a special fund to be used exclusively for highway purposes. . . ."
As you will readily discern, neither RCW 47.12.070 nor RCW 47.12.120,supra, specifies any particular form or quantum of consideration which must be provided by a county or city either in purchasing land no longer required for highway purposes or in renting or leasing land or [[Orig. Op. Page 3]] improvements above or below limited access or conventional highways. Instead, both statutes provide, in effect, that the terms of any such sales or leases are to be determined by negotiation between the highway commission and the municipal purchaser or lessee.
Insofar as any constitutional requirement for some form of consideration is concerned, it is well settled that Article VIII, § 5 of our constitution which, among other things, prohibits gifts of state funds or property, is inapplicable to intergovernmental transactions. See,Anderson v. O'Brien, 84 Wn.2d 64, 524 P.2d 390 (1974). Where, however, as in the cases contemplated by your question, the lands involved were acquired with moneys from the constitutionally restricted motor vehicle fund, it appears to us that a somewhat different view must be taken with regard to this issue. In AGO 51-53 No. 376 (copy enclosed), which was written to the state highway commission on August 13, 1952, we addressed ourselves to the question in the context of a proposed conveyance of surplus highway lands to King county for park purposes under RCW 47.12.070, supra. After quoting that statute and noting its derivation from § 1, chapter 146, Laws of 1945, we said, in overall response to the question posed:
"This statutory authorization clothes the commission with broad discretionary powers in its negotiations for the sale of lands no longer required for highway purposes. We believe, however, that the term 'negotiation' as used therein implies that it was not the intent of the legislature to authorize the commission to give away the subject lands without something in the way of consideration being returned to the motor vehicle fund. It would seem at the outset that if unused lands were given to a city or county for no monetary consideration it would constitute an unlawful diversion of motor vehicle funds, as such land is purchased from a definite fund provided by the motor vehicle users. However, if the establishment of the subject park will be of benefit to the motor vehicle users in much the same way as roadside improvements, which may be constructed by the commission from motor vehicle funds pursuant to section 88, chapter 53, Laws of [[Orig. Op. Page 4]] 1937, RCW 47.40.010, then in that event there would be consideration of an indirect nature returning to the motor vehicle users.
"It is therefore our opinion that section 1, chapter 146, Laws of 1945,supra, authorizes the Highway Commission to convey the subject property for a consideration other than that of a monetary nature and that said section grants to the Commission substantial powers in their determination of such consideration, that in the instant case if in their opinion the highway users are to be benefited by the establishment of the subject park, which benefit will provide sufficient consideration for their entering into the transaction, then they may so convey to King County for such a use.
"We would further suggest that the deed conveying the property include a reversionary clause whereby the land would revert to the State of Washington in the event the park is not established and maintained by King County."
We adhere, at this time, to the foregoing analysis of RCW 47.12.070. Likewise, we adopt this same analysis with respect to the question of consideration in connection with leases made by the highway commission under RCW 47.12.120. What this basically means, in terms of your present question, is thus as follows:
(1) In those instances in which the highway lands (including air space) purchased with motor vehicle fund moneys are to be leased or sold to a county or cityfor nonhighway purposes, the purchaser or lessee, even though it is also a governmental agency, will be required to provide such monetary or other consideration as is necessary, under the particular factual circumstances involved, to avoid an unlawful diversion of motor vehicle funds.
(2) On the other hand, if the lands and/or air space are required to be used by the acquiring county or city for such "highway" purposes as could, constitutionally, [[Orig. Op. Page 5]] be the direct object of motor vehicle fund expenditures themselves,1/ no other consideration will constitutionally be necessary in order to justify the transaction under the provisions of Article II, § 40 (Amendment 18), supra.
In those cases where other consideration is constitutionally required, because the lands are to be used for other than highway purposes, such consideration may take various forms. It need not necessarily be monetary or be precisely equivalent to the fair market rental or sale value of the subject lands. It is conceivable, for example, at least in the case of a lease or a qualified sale subject to a reversion clause, that some part of the consideration to the highway department could be in the form of a performance of maintenance services, or the like, upon the property by the lessee or qualified grantee. Or, perhaps, a part of the consideration in such a case involving a lease might be in the form of valuable improvements to the property by the lessee which, upon reverting to the state upon termination of the lease, would retain a significant residual value in terms either of future state use of the property or for future sale or lease purposes.
It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/E.g., a roadside park in the nature of a "rest stop" for highway users or a "park and ride" facility such as was upheld by our court in the recent case of Highway Commission v. O'Brien, 83 Wn.2d 878, 523 P.2d 190 (1974).